Thomas F. Gibson, Esq.

Bonney Cashin

SUMMARY OF DECISION

The respondent Board of Retirement correctly denied the petitioner's application for accidental disability retirement. The petitioner failed to show that a job-related event or condition was the natural and proximate cause of his injury. The petitioner, nonetheless, did not engage in serious and willful misconduct by driving even though he had a history of seizures.

DECISION

INTRODUCTION

Pursuant to G.L. c. 32, § 16 (4), Paul Burek appeals the decision of the Montague Retirement Board dated April 1, 2008 to deny him accidental disability retirement benefits. A regional medical panel determined that Mr. Burek is permanently disabled and that his disability is such as might be the result of his claimed injury. The Board does not dispute the panel's determination. Rather, the Board's denial was based on its determination that Mr. Burek's injury was the result of his own serious and willful misconduct.

I scheduled a hearing on January 27, 2009. Counsel for the parties and Mr. Burek appeared. The parties stated that they did not intend to offer testimony from any witnesses. They asked to have the appeal decided on their written submissions in accordance with 801 CMR 1.01 (10) (c), and they agreed to waive a hearing. The parties offered oral argument, which was recorded on one cassette tape.

FINDINGS OF FACT

2. Mr. Burek was employed from May 20, 1980 until July 31, 2007 by the Town of Montague. (Exh. F).

3. Mr. Burek was hired as a tree warden, until he became a custodian in 2006. (Exhs. D, G).

4. On January 26, 2007, while driving from one job location to another in his employer's vehicle, Mr. Burek "blacked out" and struck a tractor trailer truck. (Exhs. D, F).

5. Prior to the collision, Mr. Burek crossed the centerline several times causing the driver of the tractor trailer truck to pull over to the side of the road; the truck was almost stopped when the collision occurred. (Exh. F).

6. The Montague police filed an "immediate threat license suspension" with the Department of Motor Vehicles because Mr. Burek told them he blacked out. (Exh. F).

7. Mr. Burek sustained a "head injury, occipital laceration, contusions to the left elbow and ankle, and fracture of the right patella requiring surgical repair." (Exh. E).

8. Following the accident, Mr. Burek had physical therapy for four months, but was unable to return to work. (Exhs. C, D, E).

9. Following the accident, he was diagnosed by Dr. Adam Blacksin, his primary care physician, with "chronic pain syndrome related to multiple contusion, fractured right patella, and chronic back pain. He also has a chronic seizure disorder. He is unable to perform ... [the] essential functions of his job due to pain. He is also unable to drive between job sites due to his seizure disorder …. [His] seizure disorder may have contributed to the injury of January 26, 2007. He has no memory of driving the last quarter mile before the accident. This may reflect a seizure occurring just before the accident, but it may also be due to retrograde amnesia due to the head injury he sustained. I know of no way to establish the cause of this period of memory loss or the likelihood that a seizure contributed to the accident." (Exh. E).

10. A regional medical panel examined Mr. Burek on December 5, 2007, reviewed his job description, and unanimously concluded that he is physically incapable of performing the essential duties of his current position as custodian and that his condition is likely to be permanent, particularly because of the injury to his right knee, which restricts him from "any type of kneeling, stooping, and climbing, and walking is restricted without the use of a cane," and the panel further determined that his condition will worsen over time. (Exh. C).

11. The medical panel unanimously concluded that Mr. Burek's incapacity is such as might be the natural and proximate result of the injury that he sustained to his knee. (Exh. C).

12. By letter dated April 1, 2008, the Board agreed with the medical panel, but nonetheless denied Mr. Burek accidental disability retirement benefits because it determined that his injury was the result of serious and willful misconduct on his part, that is, he drove a vehicle knowing that he had a history of seizures. (Exh. B).

13. Mr. Burek appealed the Board's decision by letter dated April 16, 2008, which was telefaxed to the Division of Administrative Law Appeals on that same day. (Exh. A).

Medical History Significant to Seizures

14. Mr. Burek has had seizures since childhood. (Exh. F; Exh. I).

15. On the medical history form that Mr. Burek submitted to the Town of Montague in 1980, when he sought employment as a tree warden, he responded "no" to the item asking if he has a history of "epilepsy, fits, convulsions." (Exh. F).

16. During his medical exam on April 4, 1980 for that same position, the physician noted that Mr. Burek had a history of seizures but had been seizure free for seven years; he saw no contraindication to employment and he rated Mr. Burek's physical health as "A. Unlimited Work, Excellent Health." (Exh. F).

17. Mr. Burek's medical records reveal the following information significant to seizures: a. on June 12, 2001, his physician noted that Mr. Burek's seizures are sleep-related and he is able to drive; b. on March 14, 2002, Mr. Burek reported to Dr. Daniel Jancome, a neurologist, that he is experiencing brief seizures and that he is taking Depakote and Clonazepam; c. on April 16, 2002, Mr. Burek reported to Dr. Jancome that he is experiencing one or two seizures per week, and that he is taking Depakote and Clonazepam; d. on October 7, 2002, Mr. Burek reported that during the previous week he experienced one seizure each day but had no seizures during the previous two-three weeks and that he is experiencing more frequent auras; e. on January 16, 2003, Mr. Burek reported to Dr. Jancome that he is experiencing daily auras, but could not recall his last seizure; f. on June 20, 2003, Mr. Burek reported to Dr. Jancome that he is experiencing one-three auras each day, which are characterized by nausea and fluctuations in mood, some alteration of consciousness which may be brief seizures, longer episodes in the middle of the night or early morning when he will lose awareness, Dr. Jancome prescribed Clonazepam for anxiety; g. on June 29, 2004, Mr. Burek saw a different neurologist, Dr. John O'Connell, and described his seizures over the past twenty years or so as occurring mostly early in the morning characterized by confusion and by sometimes talking strangely, but without shaking, Dr. O'Connell stated that Mr. Burek's symptoms are consistent with seizures, but Mr. Burek believes his symptoms are caused by stress, which raises a question of pseudo-seizures and anxiety, Dr. O'Connell informed Mr. Burek of driving restrictions for those with seizures and that they apply no matter when the seizures occur and whatever type they are; h. on September 27, 2004, Mr. Burek reported to Dr. O'Connell that he has withdrawn from Clonazepam, he continues to experience anxiety yet his seizures are reduced, and he wishes to withdraw from Depakote, Dr. O'Connell noted that it was certainly likely that Mr. Burek has seizures but there was a reasonable possibility that all of his symptoms are caused by anxiety, and he recommended that Mr. Burek see a psychiatrist, Dr. O'Connell did not recommend withdrawal from medication at this time; i. on February 22, 2005, Mr. Burek reported no "true seizures", he continues to be treated by a psychiatrist for anxiety and his condition is improving, Dr. O'Connell stated that it appears to be anxiety causing some if not all of his symptoms, he discussed with Mr. Burek the risks associated with cutting down or withdrawing medication, and he noted that Mr. Burek has driving restrictions; j. Mr. Burek was counseled by Dr. O'Connell regarding driving restrictions on again on April 29, 2005 and on July 8, 2005; k. on January 9, 2006, Mr. Burek reported to Dr. O'Connell that he continues to have "episodes" without loss of consciousness, including one that morning, Dr. O'Connell stated that they appear to be associated with anxiety, but seizures cannot be ruled out completely, and he recommended increasing Depakote to 500 mg. three times a day; l. on February 9, 2006, Mr. Burek reported no seizures to Dr. O'Connell; m. on August 2, 2006, Mr. Burek reported his history to a different neurologist, Dr. Uma Raghunathan, as follows: he consistently has had one seizure a month for the past 20 years, he takes Depakote at 500 mg. three times a day, for the past several years his seizures occur either when he wakes up or just as he goes to bed, Dr. Raghunathan diagnosed partial epilepsy, concluded that he should be able to drive because his seizures do not occur during the day, and increased his Depakote dosage to 750 mg. in the morning and 1000 mg. at night; n. a handwritten note in Dr. Blacksin's records dated September 13, 2006, possibly a record of a phone conversation, states that Mr. Burek has seizure episodes monthly and the last one was on September 5, 2006; and o. on January 31, 2007, Mr. Burek reported to Dr. Lois Nichols, his orthopedic surgeon, that he had a history of seizures, but had not had one for several years. (Exh. G).

18. Whenever he was tested, including on the day of his accident, the level of valproic acid, which is the "active ingredient" in Depakote, in Mr. Burek's system was within the recommended therapeutic range for the treatment of epilepsy. (Exh. G).

19. Throughout his employment with the town until the time of his accident, Mr. Burek did not have a seizure while at work or while driving. (Exh. G).

20. On his application for accidental disability retirement, Mr. Burek identified seizures as a physical condition that contributed or may have contributed to his disability. (Exh. D).

21. The Massachusetts Registry of Motor Vehicles has adopted a Seizure and Loss of Consciousness Policy Statement, the current version of which took effect in June, 2004, which provides that any licensee who has experienced a seizure or any other episode of altered consciousness which will or may affect the safe operation of a motor vehicle must voluntarily surrender his license or be subject to suspension or revocation until that individual has remained episode free for a period of at least six months. (Exh. H).

CONCLUSION

The earliest date on which Mr. Burek could have received notice of the Board's action was on April 2, 2008. Mr. Burek filed his appeal on April 16, 2008, within the fifteen-day appeal period. G.L. c. 32, § 16 (4). His appeal, thus, is timely. To qualify for accidental disability retirement benefits under G.L. c. 32, § 7 (1), an applicant must prove permanent and total disability "by reason of a personal injury sustained or a hazard undergone as a result of, and while in the performance of his duties at some definite place and at some definite time." These statutory requirements focus on two factors --- "job relatedness" and causation. Wakefieldv. Worcester Retirement Bd., Docket No. CR-02-1399 (CRAB 2004). Section 7 requires that an applicant's injury not only must "result from" one's duties, but must also occur "while in the performance of [those] duties." "The requirements are conjunctive." Boston Retirement Bd. v. Contributory Retirement Appeal Bd., 340 Mass. 109, 110, 162 N.E.2d 821, 823 (1959).

Mr. Burek's injury occurred while he was driving a town vehicle from one job site to another as part of his job responsibilities. He was, therefore, performing his job duties when the accident occurred.

Mr. Burek has not established, however, that a job-related event or condition was the "natural and proximate cause" of his injury (emphasis added). Wakefield citing Blanchette v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 479, 485, 481 N. E. 2d 216 (1985). Mr. Burek was injured as a result of a car accident that occurred when he blacked out. No intervening event occurred between his blackout and the accident. Consequently, the blackout was the proximate cause of Mr. Burek's accident. There was, however, nothing job-related that led to the blackout, based on the record before me. In fact, the evidence shows that it was a consequence of Mr. Burek's lengthy history of seizures.

I note that the medical panel who examined Mr. Burek concluded otherwise. Its opinion, however, "is not conclusive of the ultimate fact of causal connection but stands only as some evidence on the issue." Blanchette, 20 Mass. App. Ct. at 483.

The Board contends that Mr. Burek's injury was the result of "serious and willful misconduct on his part." c. 32, § 7 (1). If an applicant is disabled "as a result of engaging in willful misconduct on the job he or she is not entitled to a[n accidental] disability pension." Wakefield at n.1. I need not reach this issue in light of my conclusion that Mr. Burek failed to establish a job-related cause of his injury. I address it nonetheless because it may be helpful to the parties and to the Contributory Retirement Appeal Board.

The term "personal injury" as used in c. 32, § 7 (1) has been interpreted in a similar manner to the same term in G.L. c. 152, the worker compensation law. Jones v. Weymouth Retirement Bd., Docket No. CR-04-181 (CRAB 2005). The Contributory Retirement Appeal Board has also looked to the worker compensation law to give meaning to the phrase serious and willful misconduct. Id. In the worker compensation context serious and willful misconduct is the "intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences." Id. citing Scaia's Case, 320 Mass. 432, 433-434, 69 N.E. 2d 567, 568 (1946); Dillon's Case, 324 Mass. 102, 106-110, 85 N.E. 2d 69, 71-74 (1949); Zinkowsky v. Southbridge Retirement Bd., CR-99-161 (DALA 2000). In this case, Mr. Burek intentionally drove a vehicle, but without knowing that it was likely to result in serious consequences or with a reckless disregard for the consequences. He knew that he had a long-standing seizure disorder. He knew that his seizures could result in disorientation, even loss of consciousness. He knew that in the past during 2002-2003 he experienced auras, which can be a precursor to seizures. He also knew as of June 29, 2004 that individuals who experience seizures were subject to driving restrictions. He knew that since late 2004 the frequency of his seizures lessened and that he was being treated for anxiety, which played a role in his symptoms. Finally, and most significantly, he knew that he experienced his seizures or altered states of consciousness late at night or in the early morning, that is, they did not occur during work hours or while driving. There is nothing in the record to suggest that he had a seizure at work during the 27 years he was employed by the town or that he ever experienced one while driving.

There are some inconsistencies in Mr. Burek's medical records. For example he told Dr. Raghunathan that he consistently had one seizure a month over the past 20 years. The records of his office visits, particularly during 2002 and 2003, do not bear this out. Yet the inconsistencies do not reveal any attempt to deceive and are most likely the result of a patient recounting a lengthy medical history to yet another specialist.

The Registry policy applies to a licensee who has experienced seizures that will or may affect the safe operation of a motor vehicle. It is not for me to decide how the policy applies to Mr. Burek's driving behavior before the accident. Even were I to assume Mr. Burek failed to abide by the Registry's policy, I am not persuaded that fact should result in a denial of accidental disability benefits. A violation of a law or regulation does not constitute serious and willful misconduct in the absence of an admonition or contrary instruction. See Drumm's Case, 74 Mass. App. Ct. 38, 903 N.E.2d 1127 (2009). Similarly, an assumed violation of a policy statement, standing alone, does not rise to the level of serious and willful misconduct.

Based upon what he knew and understood of his condition, Mr. Burek continued to drive. Looking at all the immediately attending circumstances, Tripp's Case, 355 Mass. 515, 518-519, 246 N.E. 2d 449, 451-452 (1969), however, one cannot say that Mr. Burek's decision posed an unreasonable risk of harm to others or the high probability of harm to himself. O'Leary's Case, 367 Mass. 108, 116, 324 N.E. 2d 380 (1975) citing Scaia's Case, 320 Mass at 434. Mr. Burek's conduct was risky, but it was a calculated, informed risk based on his knowledge of his long standing pattern of seizures. Serious and willful misconduct "is much more than mere negligence or even than gross or culpable negligence. It involves conduct of a quasi criminal nature…." Id. at 115. Mr. Burek's behavior does not rise to this level. The surrounding circumstances show that he recognized his pattern of seizures, he regularly took his medication, and he was told by his neurologist seven months prior to the accident that it was permissible for him to drive.